R v Swain (1001)
Facts: Husband got possessed and assaulted wife after waving fists in air because he thought he was being attacked. Got councelling and recovered, then at trial he ran the risk of the R asking for NCRMD but then he would be detained indefinitely – does he have the right to choose his defence?
I: Crown’s right to raise the defence of insanity over the accused’s objections
D: Lamer, C.J.C. advanced a rationale for the adversarial system of trial invoking s.7 of the Charter. Both reflect the same values of individual responsibility and respect for individual autonomy and dignity.
H: Accused person has the right to control his own defence; whether to have counsel; whether to testify on his own behalf; what witnesses to call.
R v Stinchcombe (1003)
Facts: Lawyer charged with defrauding client – accused’s secretary gave information to police which would have helped A, TJ would not force R to disclose the information and convicted the A.
I: Crown duty of disclosure/production of information to the defence.
Held: SCC said that is an obligation to disclose.
Discussion:
The element of surprise is no longer acceptable in criminal cases (this is more true for civil cases now as well).
Task of prosecution is not to obtain a conviction, but to present the evidence before the court.
Obligation to disclose is not absolute – have duty to protect the identity of informers, although they may eventually be required to testify. Crown should err on the side of inclusion.
Crown has a discretion with respect to withholding evidence where:
evidence is clearly irrelevant
necessary to protect identity to prevent harassment or reprisal
privilege is at issue
And with respect to timing of disclosure:
early disclosure may impede an ongoing investigation
Crown discretion is subject to judicial review / ethical duty. On review Crown must justify its refusal to disclose.
R v O’Connor (1008)
Facts:
Bishop being charged with sexual misconduct. Crown ordered to disclose the medical and counseling records which had been given to it, but refused to do so even after 5 requests stay of proceedings by TJ
I: Crown’s duty to produce personal and confidential records in its possession
Held:
BCCA set aside the stay – automatic right of appeal to SCC.
SCC: Court was split in complicated ways on the issues – see 1017.
Result was that the stay was overturned – go back to trial.
Discussion
All judges critical of R not disclosing.
s.7 of the charter establishes the right of the A to access all the information necessary to make full answer and defence.
Two separate situations – One where R has been given the records, another where a independent 3rd party holds the records.
Where the R has the records
The Relevance of record is presumed (else why would the R have them) and the R is required to disclose to the defence.
No expectation of privacy exists in Crown records (If the complainant gave them to the R then they must be prepared for the defence to see them as well à disclosure to crown equals a waiver of confidentiality/privilege). Importance of accused’s right to make full answer and defence. The R must warn the complainant that the records will be shown to the defence on request – given this, the crown cannot argue priviledge to hold the records back – see top 1011.
But the R can prove irrelevance and on that ground prevent disclosure to the defence.
For records in the possession of a third party:
Here the argument of priviledge can be made (obviously irrelevance can be argued as well). Balancing between privacy rights and constitutional right to have access to information to make a full answer.
Two stage test: Established that judges have the jurisdiction to compel production of records from third parties by issuing subpoena duces tecum (= come and bring it with you or you will be punished).
First stage à Likely relevance stage – this is a higher threshold for relevance than in the case where the records are in the hands of the R – there the relevance is presumed. Here the judge measures the likely relevance to the issue (material or credibility) or to competence of witness [no consideration of privacy or admissibility/policy at this stage]
To pass this stage the judge must be satisfied that “there is a reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify”.
This test should not be too strict because the A has not seed the documents, but should prevent “speculative and fanciful” requests for production.
Minority said records not likely relevant and would have defined a stricter test– majority said that are often relevant.
Second stage à balancing competing rights, considering:
a) extent to which record is necessary for accused to make full answer and defence;
b) probative (affording proof) value of record in question;
c) nature and extent of the reasonable expectation of privacy vested in the record;
d) whether production of record would be premised upon any discriminatory belief or bias;
e) potential prejudice to complainant’s dignity, privacy, or security of the person that would be occasioned by production of the record.
Cloutier v R (1018)
F: Police found marijuana paraphernalia at accused's apartment. Some of his friends had shipped a cupboard with marijuana in it from South America where they were traveling. A opened the crate with the cupboard in it, but then did not return to the mothers house. RCMP entered the house and seized the furniture.
I: Was the paraphernalia evidence admissible as relevant.
H: The judge was correct to not admit the evidence – acquittal restored.
Discussion:
The paraphernalia is irrelevant as it lacks sufficient probative value. For one fact to be relevant to another, there must be a connection between the two such that the existence of one may be infered from the existence of the other. Evidence of predisposition is not admissible; evidence of the potentiality for doing something is more prejudicial than it is probative, and should not be admitted.
Where the probative value of the evidence low, while its prejudicial effect is high, it will be inadmissible.
“What is relevant will be decided by logic and human experience, and facts may be proved directly or circumstantially.”
“Admissible evidence is thus that which is (1) relevant and (2) not excluded by any rule of law or practice…Evidence may also be admissible for one purpose and not for another.”
Evidence of use of marijuana was held to be irrelevant and inadmissible. No real probative value - insufficient connection between being a user of marijuana and knowing the dresser contained marijuana.
“Evidence is not admissible if its only purpose is to prove that the A is the type of man who is more likely to commit a crime of the kind with which he is charged”.
“there must be a nexus between the act charged and the facts relating to previous or subsequent transactions which it is sought to give in evidence”.
Proof of motive is circumstantial only, and cannot be admitted if it does not show a sufficiently close logical connection between the facts that are to be proven as a motive and the crime committed. See law dictionary definition of circumstantial.
Many of the statements made in this case were later rejected by the SCC in Morris – Not sure I agree with this.
Morris v R (1022)
F: Charged with conspiracy to import and traffic in heroin. Wiretap evidence the drug was being imported from Hong Kong. Police found newspaper clipping, “The Heroin Trade Moves to Pakistan”.
I: Was the clipping relevant and admissible?
H: SCC Majority - Clipping was admissible, dissent by Lamer
Discussion
Majority
Said that there was a nexus between having the clipping and having the intention to import. The clipping could potentially be used by the trier of fact to draw an inference that preparatory steps in respect of importing narcotics had been taken or were contemplated. Probative value of evidence may be low, but “weight” is for the trier of fact and must not be confused with admissibility. Said that the clipping was similar in nature to a list of homes broken into found on possession of accused in B&E trial. Deferred to the better position of the TJ to make a call in the trial.
The judge cannot weigh the evidence. Even marginally probative evidence is relevant. The prejudicial effect of evidence is a matter of law, and goes to admissibility, not to relevance.
Dissent:
One judge in CA said it was irrelevant and therefore should not have been admitted, Lamer says that it should have been excluded not because it was irrelevant, but because it was inadmissible because it went solely to indicating character and was unrelated to the crime. Because the article was not about Hong Kong, it was not relevant to the crime to be proved.
R. v. Wray (1026)
F: Gas station robbery, with no direct evidence. Obtained confession from Wray improperly (9hours of interregation), and found rifle in swamp after confession with the aid of Wray.
I: Whether the evidence given in the confession was admissible, based on the fact that to admit it would either be “unfair to the A” or “bring the administration of justice into disrepute”.
H: The SCC split 6 vs 3, but found that the evidence that the A directed the police to the location of the rifle should have been admitted.
Discussion:
Majority says that “bring the administration of justice into disrepute” has never been a reason for not admitting evidence. Says that “unfair to the A” can be a reason for not admitting evidence, but that was not applicable in this case.
Said that there is no sweeping discretion to find evidence inadmissible. Real evidence which is obtained improperly is generally still admissible, however, testimonial evidence is not (I did not see this is in the case and do not know what it means yet??).
Established judicial discretion to exclude relevant evidence in criminal cases if it is (see quote 1029):
à of trifling probative value; and
à of tenuous admissibility; and
à gravely prejudicial to the accused.
All 3 must be present before the discretion is exercised.
R v S. (R.J.) (1029)
Criticized the decision in Wray as permitting unfairness and abuse of state power. Now s.24(2) of the charter deals with this issue, although was not “in response to” Wray and the fact that such interrogations bring the administration of justice into disrepute.
R v Burlingotn (1030)
Also criticized Wray.
R v Seaboyer (1030)
Said that the test from Sweitzer now supercedes the one from Wray – “admissibility will depend upon the probative effect of the evidence balanced against the prejudice caused to the accused by its admission”
The same rule is not applied to defence evidence, for prosecution evidence it is an exact weighing, but for defence evidence the prejudicial effect must substantially outweigh the value before it will be excluded. To whom would the defence evidence be preducial is my question ??
Anderson v. Maple Ridge (District) (1993)(BCCA) (1031)
F: P drove a car into an intersection without stopping at a stop sign and was injured. Brought action against D municipality alleging it located the sign so as to obscure it from the view of oncoming motorists. After the accident, and before trial D moved the sign. P tried to call a local resident to testify motorists frequently overlooked the sign and that moving the sign had corrected the problem.
Issue:
Is evidence of the moving of the sign and reduced accident rate after the moving of the sign admissible.
Held:
Evidence was excluded at trial and the P failed.
The accident history evidence was admissible – go back to trial.
Discussion:
Evidence is relevant if logically probative of either a fact in issue or a fact which itself is probative of a fact in issue. Evidence could reasonably support the inference the sign was less visible to East bound drivers in its pre-accident location than after it was moved. Potential prejudice in this case is minimal, and could be cured by proper instruction to the jury.
Evidence of relocation of sign was relevant and admissible to prove the poor positioning of the sign before the accident. The evidence of remedial steps taken after an accident is relevant and admissible as proof of negligence, but not as an admission of negligence by the D.
The CA disagreed with the rule by Wigmore which would say that sign moving evidence should not be admitted because the owner may have moved the sign even though he thought it was not the cause of the accident, and that allowing such evidence would provide an incentive to not repair before trial which would put others at risk – the court said that they would move it because of fear of additional liability if more accidents occur.
The CA said that the relative power of the judge to disallow evidence in criminal and civil trials respectively is a big question for another day, and that in this case the probative value far outweighed the predjudical effect, and that the jury must be cautioned that the moving of the sign alone does not prove that it was badly positioned in the first place. CA said the jury would understand that concept.
Note: I think that a distinction must be drawn between the moving of the sign and the subsequent effect – I think that the moving is irrelevant, and prejudicial, but the subsequent accident history will be useful for the proving of causality, although not forseeability. The court does not really seem to make this distinction and just says that it is admissible in this case.